Opinion of Davis, Clifford, and Swayne, JJ., dissenting. should be recorded.* It was insisted that the papers which were produced in this case before the commissioners, constituted such an expediente, but if it be conceded the papers are of Mexican authority, they do not contain any diseno or map, or reference to the local officer, or his report thereon. There could be no record of the petition and grant with the map of the land granted, because no map of any kind was annexed to the petition, and there is no evidence in the record that any part of the expediente was recorded as required by Mexican law. Grants of this kind were made subject to the approval of the departmental assembly, but there is nothing to show an attempt, even, to comply with this requirement. On the contrary, there is every reason to conclude that it never was presented to that assembly, as it is well known that there were a large number of grants made about that time which were presented and approved, and as this one was not approved, the inference is fair and reasonable that it was never presented for approval. It also appears that no judicial measurement of the land was made, nor possession of it taken by the supposed grantees, as required by the Mexican law, and the conditions of the grant. The documents offered in evidence are not shown by any competent proof to be Mexican documents. The court in its opinion describes them as having been produced from the public archives, and this statement might create the impression that the expediente under consideration came from the Mexican archives. This cannot be so, as the number of the expediente proves beyond a doubt that it is one of those papers found in the custom-house at Monterey the latter part of the year 1847, or the fore part of the year 1848, which were subsequently included in Hartnell's Index. This index is not, and never has been regarded as a Mexican document. Since the decision of Castro's case, this court, until now, as I suppose, has adhered to the principle, that whoever claims title to land in California under a grant Knight's Case, 1 Black, 228. † Knight's Case, supra. Opinion of Davis, Clifford, and Swayne, JJ., dissenting. from a Mexican governor, must, as a general rule, produce the grant and show that it came from the public archives of land titles in the proper office of that department, or that it was found in Jimeno's Index, or that it was recorded in the Toma de Razon. It is true, in that case, Chief Justice Taney said that secondary evidence could be received, when it appeared that the grant had been properly made, and that the papers, or some of them, in the office where they were kept, had been lost or mislaid, but the court held, that a party setting up a grant by such proofs, must also show that there was a judicial survey of the land, and that the supposed grantees took actual possession of it, and exercised acts of ownership over it, before the change of jurisdiction. There are a number of cases in which the same rule is laid down (some of earlier and others of later date than Castro's case), and it seems to me they ought to control the decision of this case.* No possession of any kind is proved in this case, and the authenticity of this grant, covering an area of over forty thousand acres of land, depends on the testimony of a single witness, unsupported by any proof, except the imperfect or mutilated expediente, found among a mass of loose papers on the floor of one of the rooms of the custom-house at Monterey, after the Mexican officials had fled, on the approach of our forces. Possession is essential in such a case to establish an equity, and as none is proved, the claimant has no equity, and in my judgment the decree ought to be affirmed. * The United States v. Cambuston, 20 Howard, 59; United States v. Fuentes, 22 Id. 445; United States v. Bolton, 23 Id. 341; White v. United States, 1 Wallace, 660; United States v. Pico, 2 Id. 279. Statement of the case. THE COLUMBIA. A steamer crossing another so as to involve risk of collision, condemned in a case of collision: 1st. For violation of the regulation, then existing, that when steamvessels were so crossing, the one which had the other on her own starboard should keep clear. 2d. For not keeping clear, being the following vessel. APPEAL from the Circuit Court for the Southern District of New York. The owners of the propeller Jersey Blue libelled the steamship Columbia, one of the Charleston line of steamers, in the District Court for the Southern District of that State, on account of a collision which occurred in 'the harbor of New York, on the afternoon of the 7th of January, A.D. 1860. The case, as assumed by the court on the testimony, was thus: The propeller started on a voyage from the coal docks in Jersey City across the Hudson to the East River. The tide was strong ebb, and there was very little wind. From her start her course was nearly towards the Battery, New York, somewhat south of east, and she kept on that course until almost immediately before the collision. Her rate of speed was probably not far from six miles an hour. Soon after she left the docks the steamship Columbia pushed out from pier No. 4, on the New York side of the Hudson, to commence her voyage to Charleston. There was at that time a body of floating ice, extending outward from the piers six or eight hundred feet, but beyond the ice the river was clear. As the ship hauled out into the stream her bow was swung by the tide downward, and her helm was put to the starboard. Whether she had cleared the ice-fields before she headed down the bay, was a matter somewhat disputed, but not one of importance. If she had not entirely cleared it, she had so far done so as that only her port wheel was in the ice-field when she met the propeller. All was open on her starboard side. She proceeded down the river, in a course nearly parallel with the outer ends of the piers, prob JERSEY CITY Statement of the case. ably just on the outer edge of the ice-field, and at the rate of not less than four miles an hour. When she came to a point nearly opposite Castle Garden, and a little below the Battery, she collided with the propeller, her starboard wheel mounting the deck of the propeller about midships, on the larboard side, and walking over it forty or fifty feet, doing considerable damage. There were other important circumstances preceding the collision. The Columbia was seen from the propeller soon after she hauled out from the pier and commenced swinging down the river. The propeller then blew one whistle, which was not answered. When the vessels approached each other and danger of collision appeared, the propeller again blew one whistle, thus signalling that she intended to pass on the right. This second signal Statement of the case. was not answered. But when they came within six or seven hundred feet of each other the pilot of the Columbia hailed that he could not stop, and the engine of the propeller was immediately reversed, and she commenced backing. The backing was continued until the collision, entirely stopping the headway of the propeller, and swinging her head somewhat outwards from New York. On the other hand, the propeller was seen from the Columbia when the latter was only about one hundred yards from pier No. 4, and before she had taken her course down the river. She was seen to be heading from Jersey City about towards the Battery, and to be, at most, about half a mile distant. She was off the starboard bow of the Columbia, and only her port side could be seen. It was apparent that her course must cross any course the Columbia could take. After the latter had headed down the river and had come within six or seven hundred feet of the propeller, her helm was put to the starboard, so that she headed inside of Governor's Island, instead of west of the island, her proper course out to sea. She then hailed, but did not stop her engine, or certainly not, until the collision had taken place. Thus far there was very little controversy in regard to the facts. Most of them appeared in the answer to the libel, and from the testimony of the pilot of the Columbia. But the libellants relied, for the condemnation of the steamer, on another fact, which they conceived that the evidence showed; the fact, namely, that the Columbia was the following vessel, and so by the rules of navigation bound to keep out of the propeller's way. On this part of the case, Chadsey, the captain of the Jersey Blue, testified that he first saw the Columbia when his own vessel was south of pier No. 1, and two or three hundred yards distant; that he saw her over his left shoulder as he was standing at the wheel; that she was then just coming out of pier No. 4, and swinging down the river. This was evidently before she had straightened on her course. If this was so, the Columbia must have been above, namely, further up the river, and the following vessel. Captain Chadsey's testimony was corrob |